Do We Need An Internet Zoning Law?

from the chipping-away-at-the-first-amendment dept

Want to know when someone is preparing to take away your First Amendment rights? It's when they claim that they have a proposal that involves "balancing" those rights with other events (sent to us by Eric Goldman). In this case, the proposal comes from a professor from Brigham Young University, Cheryl B. Preston, who's proposing the idea for an Internet Community Ports Act (ICPA), which would create special "zones" online where it would be okay for "adult" material to reside, and other zones that would be kid friendly. Apparently, this is needed to:

Find a reasonable balance among the values of the First Amendment, the appeal of an unfettered technological frontier, the right to be free of unwanted speech, and the right of parents to have the aid of the government in protecting children from age-inappropriate sexually explicit content online.

We've seen similar proposals in the past that haven't gone very far. And, this proposal seems quite similar to that older proposal -- except presented by a law professor in a law review, rather than a local business man. Like that last proposal, this one focuses on having all adult content be accessed over a specific port. As we noted when that earlier proposal came out, the problem isn't with the idea of a "red light" district, but with determining what is and is not considered reasonable or "harmful." Given how badly many online filtering services "over filter" content, this could be a real problem.

Yet Preston brushes this very big issue aside:

Much of the debate about regulating pornography has stymied
on the esoteric impossibility of drawing the line between acceptable
and unacceptable content. However, "definitions" is a diversionary
argument. Not only do we know it when we see it, we now have
codified the scope of it and relied for federal court purposes on the
ready identification of it by a range of observers.

Not quite. While it is, perhaps, possible to have courts judge these things for professional publications, when you're talking about a communications medium where everyone is a publisher and decisions need to be made in real time, that "definition" problem is very, very real. Much of the rest of the argument in favor of this law, again, seems to miss out on this important factor, acting as if the rules that have been set up for traditional publishing systems can equally be applied to real-time communications. That's simply not true.

But, of course, with the latest smack down against the COPA law, you can bet that politicians will eventually be looking for the next big "protect the children on the internet" law -- so don't be surprised if you see a version of this proposed law bubble up at some point.

"...everyone is a publisher and decisions need to be made in real time, that "definition" problem is very, very real."

There are laws pertaining to very many things that we do everyday and very few of us have to refer to a precise law before determining whether to proceed or not, so it doesn't seem a particularly apt objection.
I expect for those people/bloggers tempted to publish pornography but who are insufficiently familiar with laws there would be training courses becoming available.

Just another

way for the politicians to screw us. Oops, screw is an adult word and when used this way, particularly in referring to our blessed political officials, it's vile and disgusting. Techdirt is now banned adult material zone as are any other blogs where the author, or posters, comment as such.

Re: Just another

Aren't there services out there that parents can subscribe to which would limit access to web sites that are on a "white list"? In other words, instead of having an adult zone, allow parents to filter access to only a kids zone.

This seems like yet another issue where the market could resolve the problem using technology rather than legistation. Maybe Company A pays professionals to maintain the white list of kid-friendly web sites. You don't like some of those sites? Then switch over to Company B who allows for a wiki-like maintenance of the white list.

The point is that there are several ways that parents could limit what their kids are viewing on the web without having to resort to putting undue limits on what adults can view. At most, the government should be involved in promoting these types of open filtering models. But there's no reason that they should enforce one filtering model over the other (or any at all).

Re:

Training courses? Please tell me you're not serious. Do you really think that the only problem with censoring online content into "adult zones" is properly training people on the legal definition of pornography?

Re:

That puts the obligation on the filtere service to interpret what is objectionable, and some of them (most of them ?) don't do a good job but can't easiliy be held responsible for anything.
But if the publisher had to decide where to publish and tehy do a bad job they could then be held responsible for something in a way that might help persuade them not to do it again.

in a society with a right to freedom of speech, how is it that there is unwanted speech? if you want to live in a society and want to have a right to free speech, it would be impossible for there to be unwanted speech, just free speech from other people, and she wants free speech for everyone, right?

It's the Constitution People!

I just did a once over of our beloved document. Guess what? There is no right "to be free of unwanted speech" or "right of parents to have the aid of the government in protecting children".
Of course it could be in the penumbras, formed by emanations of the Bill of Rights.

The problem

As I see it, the problem is that Ms. Preston and those in a position to enact policy are approaching this topic from the wrong end. Instead of cordoning off objectionable material, they should instead concentrate on creating a kid safe zone by creating a certification program, or something similar, where content providers must be registered in order to use a top-level domain, say .kid, and certify that the content is kid-friendly. This puts the cost and burden on those content providers, allowing them to charge a premium for their kid-friendly content services, and removes the burden from the rest of us.
Just a thought.

Re: The problem

So in order to allow you unfetterd access to objectionable content the rest of use should pay to avoid it ?.

I guess that would make a vast amount of wealth for some people, but a more efficient solution would be to make the people who want the objectionalble content pay to get it; I'm sure that would mean less of the nations wealth is wasted on filtering, although less wealth accumulated for the filterers.

As a confirmed agnostic, I get a little twitchy when a legal scolar from a religion-based university advocates for a law that seems to favor that religion's view of what is wholesome.

I think one of the reasons we are in trouble as a society is because nobody wants to take responsibility for their actions, or lack thereof. That's why people always want to "pass a law" that deals with their favorite cause horrible.

If you don't want your children to be exposed to this stuff, then take some damned responsibility to ensure that the inter-tubes that reach your children are the ones you approve.

This one smacks of the caretaker/nanny society that has always been at the fringes in America.

Re: Re: The problem

why would you be willing to pay to have content that you already have access to blocked (and keep in mind that there is a lot of content that gets blocked that shouldn't), but are not willing to pay for a service that promises only to show non-objectionable content? it is no different then cable, you don't like what fox shows on their network, you don't have to pay to receive fox.

you shouldn't have to pay for anything you already can receive free of charge. But if you want a specialized service (whether it is a super-kid friendly version of the internet or an all porn all the time service) then feel free to pay more for it, but don't force it down everyone else's throat.

If you want to pay to have your internet censored feel free, but don't try and make the censored version a law and don't try and make the rest of the populace pay for the uncensored version. The fact is that the majority of internet users like to see porn, there is no reason that they should have to pay to fulfill the desires of the minority, AKA the "It's for the Kids!" idiots.

Re: Re: The problem

Did you actually read AC's post?

At no point was it mentioned that users should have to pay to access this ".kid" area- while the content providers (ie, the websites themselves) would have to pay to get on the ".kid" domain (and, by the way, people already have to pay to buy domains), there was nothing mentioned to say otherwise. Assuming there was some certification process to make sure there was no objectional content on the site before it went onto this ".kid" section (which may or may not cost money to have done), then filters become trivial at this point- just block non-.kid sites.

Even ignoring the fact that you're target is based on this faulty assumption, it still doesn't hold ground. Filtering the 'bad' out of the internet takes time and money- leaving it unfiltered (as it is) is a fairly easy task, you just don't do anything. If people decide that separating out content should be done, then the burden should be on the people who want it, not those who don't. That's how the market works- if you want it bad enough you'll be willing to pay for it.

At the same time, this entire argument is pointless- if you're an adult, you can just not go to the sites with the objectionable content (its not hard to not click a link) and if you're a kid your parent's should be watching you. Just because you don't want to take responsibility for your kid, or are so offended by the idea that there might be something naughty on the internet you might see if you actually went looking for it, doesn't mean the rest of us should pay to babysit you and your family.

Re:

What "right" to be free from unwanted speech?

There *is* *no* *right* to be free from "unwanted" speech.

That's what people don't understand about this country. The founding principals have always been in order to remain Free, its better to take more bad things than good than lose that Freedom and try to have everything good.

The famous saying by one of our Founding Fathers goes: Better to have 9 Guilty men go free than have 1 Innocent man in Jail.

Remember that. As another said, those that would sacrifice Liberty for some temporary security, deserve neither.

In the case of free speech, better to hear a bunch of stupid crap you don't want to, than not be able to tell everyone else that what they are saying is wrong.

Christ. If only people would TEACH the Constitution in school rather than gloss over it. Then shit like this wouldn't happen.

Re: Re:

That puts the obligation on the filtere service to interpret what is objectionable, and some of them (most of them ?) don't do a good job but can't easiliy be held responsible for anything.

It sounds like you're more concerned with preventing the publishing of material that you find offensive than finding a useful means of filtering that material. Who care who's "responsible" if you can filter out the content from you or your children? As I pointed out in my original comment, if you don't like the filters that one company uses, then "vote with your mouse" and use another service.

Re: Re:

Re:

But, really there's a better system - a rating system for web pages like Video Games and Movies use.
G, PG, PG-13, etc
Then software can restrict it based on content.

You're joking, right? Your "better system" is to have some government agency rate each and every web site, blog, video, and comment on the web before it gets posted? A centralized rating system for the web is completely and utterly impractical.

Unwanted speech

Re: The problem

I agree wholeheartedly that the best approach is to identify the sites a kid can see rather than what they can't. (See my previous post about white lists.) However, I really don't think that a .kid TLD is the way to go. This would mean that a government or a psuedo-government agency would be in charge of making the determination of what was appropriate content for this domain. The definition of what is appropriate for children is so subjective, you'd never get agreement. The agency would get so bogged down in initial evaluations of web sites and petitions to have web sites removed, that you'd have complete gridlock.

Again, the only practical solution as I see it is to let people decide for themselves what filter they want to use. Maybe the government can step in and promote a particular standard that different parties can use to filter content, but it would be up to the parents to decide which filter to use. If you want to use a filter that is maintained by the members of your local church, then so be it. If you want to pay a company to review and rate web sites, then so be it. If you want to create your own filter that you use and your neighbors use, then so be it.

The key of course would be to have some open standard that would be able to implement different filters based on our personal preference. Maybe there's a company out there that does this or maybe there's already some mechanism for this, but it should absolutely not be the government who controls the filter.

The CP80 gang again

Mike wrote: "We've seen similar proposals in the past that haven't gone very far. And, this proposal seems quite similar to that older proposal -- except presented by a law professor in a law review, rather than a local business man."

Well, no. In fact, this isn't just similar, it's the same CP80 proposal yet again. Cheryl Preston is chair of CP80's Board of Advisors since 2005 - see her faculty profile and marvel just how obsessed she is with porn. And, just to remind everyone, the "local businessman" isn't just anyone - it's Ralph Yarro, still chairman of the notorious SCO Group.

You're joking, right? Your "better system" is to have some government agency rate each and every web site, blog, video, and comment on the web before it gets posted? A centralized rating system for the web is completely and utterly impractical.

No Government involvement needed. It's completely on the web site operator to add it. Then software can be set up to 'refuse' unrated sites if so desired, and allow sites with ratings. Of course there might need to be some oversight, but it could be done through a non-profit (like email blacklists) and not through a Government agency.

Re:

This system already exists. IE works with it (content advisor on IE7). I had that problem a while ago with one of my PCs that came with the block enabled and no one had the password. It is a pain in the ass to download FireFox when most web pages aren't rated.

The self imposed rating system won't work ether, anyways. Imagine if someone decided to give their site a "G" rating but still have full frontal nudity? Maybe someone has a nudists website. Not sexual in any way and, to them, would be family friendly.

The best way to do it would be to have a filtering software that makes the parents of the kid manually add the websites that are allowed to be viewed. No one wants that because it would involve working.

Re:

in a society with a right to freedom of speech, how is it that there is unwanted speech? if you want to live in a society and want to have a right to free speech, it would be impossible for there to be unwanted speech, just free speech from other people, and she wants free speech for everyone, right?

Re:

This woman clearly has no business being a law professor. There are no rights to be free of unwanted speech, or of parents to have the aid of the government in protecting children from age-inappropriate sexually explicit content online.

As a lawyer, I am embarrassed that such a woman is teaching future lawyers.

Re: It's the Constitution People!

I just did a once over of our beloved document. Guess what? There is no right "to be free of unwanted speech" or "right of parents to have the aid of the government in protecting children".
Of course it could be in the penumbras, formed by emanations of the Bill of Rights.

Actually, it would be in the emanations, formed by the penumbras of the Bill of Rights.

Re:

I don't see anything in Hulser's comment that suggests government involvement. Put simply, your suggestion is ridiculous. It would require a majority of websites to use it in order to be even remotely useful (including those hosted outside the US). "Zoning" is useless when someone can go to a Japanese website as easily as a US site, and the ratings aren't enforced in Japan.

Then, somebody would need to be responsible for double-checking each and every site on the internet on a regular basis, which would be a hugely expensive task. How would this be funded? If the answer is "taxes", it's a government agency. Any other answer would require charges that a majority of people would not want to pay. Spam is a totally different kettle of fish.

It would also be impossible to guarantee that the rating would be accurate. For example, let's say a user on your G-rated forum hotlinked an image that's been changed from a picture of a landscape to explicit gay porn. The rating has been violated severely, yet the forum has no responsibility for that occurrence and it may not be noticed until a shocked parent complains. In this case, the rating is utterly useless - even a centralised system the pre-vets every post (itself utterly impractical) would miss this kind of event.

Let's face it, there's already plenty of software available that does the job of content filtering. Censorship should not be forced onto the rest of us just because some people don't understand how to use their computers.

Re:

Maybe you should read the paper.

In addition to the paper linked to this blog (Making Family-Friendly Internet a Reality: The Internet Community Ports Act, Cheryl B. Preston, Brigham Young University Law Review, Vol. 2007, No. 6, pp. 1471-1533, 2007, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1146651), maybe you should read the one that describes what freedom from unwanted speech means and the Supreme Court caselaw supporting it. It would answer many of your questions.

well, children need gurdians and supevision on net

but they need-it wherever they go, and that's what parents and teachers are for. and from my experience, the best protection you can give a child is education about that i guess like most of the parents this day need too, just to think what i did to protect my child from that, and not to point the finger at whoever/whatever the child was harmed by only.

as for the rest , we do not want our children spending time in strip bars, etc, so we have these places guarded against, what i think is that all pages that enable mature content to be flagged by owners (and they are surely not all) and, even for free content, an age verification (verisign or whatever digital signature provided) for access, process managed by an secure site, without no interference from site itself, and no recording of identity of user(for privacy of course).

but this is just a thought... applying this techniques and procedures might get off the problem a part of minors accessing mature content on web. the best way is, that those pages get a separate treatment from ISP's worldwide, marking the sites as mature content and requiring a password/session too access these sites, password given to owner of internet subscriber only on request together with a chip card o similar for more protection (considering an id card reader these days cost like 10 euro and is multifunctional...)

I learned something today!

First off, +1 for Ms. Preston for joining us here in our reindeer games (and for actually pointing us to more source material). Well done. I must admit, my first impression was, “I don't remember seeing that in the Bill of Rights.” But if you read the source material (+1 more for having it available for free), what is being talked about here is a limited property right – the right to control the information that comes into your own home.

The practical problems with the proposed solution are numerous, onerous and already well-documented (both here and in the source materials).

There needs to be some platform in the USA that affords unfettered first amendment rights to free speech, god knows that our government and politicians have already taken some huge bites out of our rights. How about a crackpot gag order for those that propose to usurp our constitutional rights, by politicians or other quasi intellectuals. Maybe even removal from elected office and federal criminal prosecution. Would that quell the continuous assault on the constitution?

Re: well, children need gurdians and supevision on net

a few problems with your idea:

1: who is going to pay for the age verification? it isn't free.

2: what about sites that offer mixed content? for example a huge forum where there are family friendly areas and then special areas for adult content? or there is a single image of a topless woman on an otherwise clean page. what about art that contains nudity? should site with the venus de milo be banned? how about a website with a couple tasteful topless pictures? who considers what is tasteful?

3: the entire internet doesn't reside in america, what are you going to do about the sites that reside outside of it? i'd love to see you force your views on the entire world. and no, blocking those sites with a second great firewall is not a good solution.

Re: I learned something today!

But if you read the source material (+1 more for having it available for free), what is being talked about here is a limited property right – the right to control the information that comes into your own home.

To continue this thread... that right doesn't support the proposed law IMO. You already have every right to control how much porn comes into your home, including none. Don't own a computer. Don't use the web. Use filtering software. Monitor your childrens' internet usage. There are any number of solutions that do not require laws that potentially (at best) infringe on Constitutional rights, and are probably (at best) completely unworkable technically.

If the problem is content that nobody asked for, eg click a fun looking email and it turns out to be porn, this law would not solve it anyway. Plenty of sites would be willing to put porn on a "safe" port. Plenty of porn is served up from overseas where they would be perfectly within their rights to totally ignore this US law. And should as a matter of principle.

two points, one I'm just reinforcing

1) This type of filtering already exists. Most parents choose not to use some of the methods due to either a) cost b) laziness c) lack of knowledge on such systems d) their expectation of their government to be a nanny and/or e) the ease of their child(ren) being able to get around them. No matter what system exists, some kid(s) will have the type of parents who think this sort of thing is silly, and all the kids will go to their house to see what they want.

2) I expect for those people/bloggers tempted to publish pornography but who are insufficiently familiar with laws there would be training courses becoming available.

Except for the fact that there would have to be a way to get the entire planet to chip in their two cents on what pornography is or is not. And you'd have to take the course every week given the number of number of cases in the U.S. alone that define what is or isn't patently offensive or considered adult. The 50 states within our union can't even come to a consensus on this--and you expect it to be as simply as taking a course? If only!

Re:

Oh, right, that isn't what you mean. What you mean is when someone wants to see content that you don't want them to see -- like your son viewing porn -- it seems just fine to 'opt out' for them.

I'll agree that this makes some sense when you're talking about your own kid and what you want them exposed to as your raising them, but it changes things when your desire to supervise your child starts interfering with the way other people live their lives.

What Ms. Preston is asking for, and what your 'rating system' is asking for, is a way that parents can stop thinking about what their kids are doing and be sure that it's 'safe' without taking an active part themselves. Even if well-intentioned, that just feels really irresponsible to me.

"from a professor from Brigham Young University"

the right to be free of unwanted speech

This nutcake is of course ALREADY "free of unwanted speech" he can just not browse the internet (no one will put him in jail for not browsing, therefore he is absolutely "free" not too). That is a horrorfyingly stupid turn of phrase, even from a religious wack job.

Legal Issues

One would think a law professor, of all people, would realize that a statute passed by the US Congress only binds US citizens. Even if this proposal was workable on a practical level regarding definitions of "objectionable content", how does he propose to deal with someone in another country who decides to post such content outside the correct "zone" or port and who is not subject to US law?

Re: Re: Re: Nuisance

> Apparently someone has never heard of nuisance law.

Apparently you have no idea what you're talking about. Nuisance laws don't regulate content at all. They regulate noise loudness levels. It has nothing to do with speech. Your neighbor's barking dog or car alarm violates nuisance laws and neither one is speech. Likewise, as long as your neighbor is quiet about it (i.e., a written political sign in his front yard), nuisance law does not apply.

Ignorance Abounds

Please, for the love of all things, READ the articles C. Preston posted above, especially if you are going to continue posting random comments yelling at her reference to the right to be free of unwanted speech. EDUCATE yourselves before you criticize.